DeVault v. Nicholson, 15528A
| Decision Date | 27 May 1982 |
| Docket Number | No. 15528A,15528A |
| Citation | 296 S.E.2d 682,170 W.Va. 719 |
| Court | West Virginia Supreme Court |
| Parties | Bonnie DeVAULT v. Edith NICHOLSON, Acting Supt., WVSPW. |
Syllabus by the Court
Where a women's prison has been created by a legislative act, W.Va.Code, 28-5C-1 [1947] et seq., a legislative act is required to close it.
Larry Harless, Webster Jay Arceneaux, III, Charleston, for petitioner.
Richard S. Glaser, Asst. Atty. Gen., Charleston, for respondents.
Bonnie DeVault and a majority of the inmates at the West Virginia Women's Prison at Pence Springs seek a writ of mandamus to compel the Department of Corrections to continue to operate the Women's Prison under W.Va.Code, 28-5C-1 [1947] et seq. Petitioners have been convicted of felonies in West Virginia courts. Respondents are the acting superintendent of the Women's Prison and the Commissioner of the West Virginia Department of Corrections. Petitioners assert that closing the Women's Prison would allow the executive branch to repeal a statute. We agree and grant the writ.
In January, 1982, the Department of Corrections announced its intention to close the Women's Prison by transferring the inmates to the Federal Correctional Institution for Women at Alderson, West Virginia. In response to the decision to close the Women's Prison, petitioners, proceeding pro se, sought a writ of habeas corpus, which was amended to add a cause of action in mandamus after this Court granted the writ and appointed counsel. Petitioners sought to prevent their transfer from, and the closing of, the State's only women's prison, and to compel respondents to bring its facility into compliance with constitutional and statutory standards set forth in Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981). Upon argument of this case it was stipulated in this Court by the commissioner that the department intended to close the prison.
The decision to close the Women's Prison apparently was due to the gloomy forecast of legislative financial support for the State's prisons, coupled with this Court's decision in Cooper v. Gwinn, supra. In Cooper we held that "inmates incarcerated in West Virginia State Prisons have a right to rehabilitation established by W.Va.Code, 62-13-1 and 62-13-4 and enforceable through the substantive due process mandate of article III, § 10 of the West Virginia Constitution."
Respondents have a statutory duty to operate the West Virginia Women's Prison. W.Va.Code, 25-1-3 [1977] provides: "The commissioner of corrections shall manage, direct, control and govern the following penal or correctional institutions and any others placed under his jurisdiction or control: ... West Virginia State Prison for Women at Pence Springs; .... (emphasis added by the Court). This same mandatory language is found in W.Va.Code, 28-5C-2 [1947] which provides: "The West Virginia state prison for women shall be managed, directed and controlled as provided in chapter twenty-five [ § 25-1-1 et seq.] of this Code." (emphasis added by the Court). "It is well established that the word 'shall,' in the absence of language in a statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syllabus point 2, Perry v. Barker, 169 W.Va. 531, 289 S.E.2d 423 (1982). Thankfully, resort to rules of statutory construction is unnecessary. Indeed, common sense tells us what "shall" means.
Although "[w]e do not claim expertise in [prison management]," Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322, 323, 331 (1980), the job of the courts is to enforce clear legislative mandates. As this Court stated in Cooper v. Gwinn, supra.
As an officer of the Department of Corrections, the Commissioner is bound by the statutes creating that agency.... Furthermore, as an executive officer the Commissioner has the constitutional duty to "take care that the laws be faithfully executed." W.Va.Const. art. VII, § 5. Our Constitution does not permit executive officers to pick and choose the laws they will or will not execute, for if such were the case, the executive department, could, either by commission or omission, [sic] model a system of law different from that specified by the people acting through the Legislature. So long as a legislative enactment as law exists, the executive department has the constitutional duty to attend to its faithful execution. 171 W.Va. at 253, 298 S.E.2d at 789.
The Women's Prison was established by an act of the Legislature in 1947. A legislative act is required, then, to close it. Certainly anything that changes the status quo is not automatically suspect. Nor will this Court by reflex action preserve the status quo if the executive branch has discretionary...
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